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TMI Blog2018 (3) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... on Petitions are allowed - Tax Case (R) Nos. 10 to 12 of 2018 C.M.P.Nos.2297 to 2299 of 2018 - - - Dated:- 28-2-2018 - S. Manikumar And V. Bhavani Subbaroyan, JJ. For the Petitioner : Mr.V.Sundareswaran For the Respondent : Mr.V.Haribabu Additional Government Pleader (Taxes) ORDER ( Order of the Court was made by S. Manikumar, J. ) Tax Case Revision Petition Nos.10 to 12 of 2018, for the assessment years 2008 2009, 2006 to 2007 and 2007 2008, respectively, are filed against the orders made in S.T.A.Nos.250 to 252 of 2014, dated 20/12/2017, on the file of the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Chennai. 2. As common facts and questions of law are involved in the instant Tax Case Revisions, they are heard together and disposed of by a common order. 3. Facts of the cases, as culled out from the supporting materials are that the petitioner Ergomaxx (India) Pvt Ltd., Chennai, is a registered dealer in the Books of the Assistant Commissioner (CT) Nungambakkam, Assessment Circle. He is also a dealer registered under the Central Sales Tax Act, 1956. In the course of business, the assessing officer, issued notice, under Section 27 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sales Tax Appellate Tribunal, vide separate orders in S.T.A.Nos.250 to 252 of 2014, for the assessment years, 2008 2009, 2006 to 2007 and 2007 2008, passed order. As orders are similar, suffice to extract one such order, for the assessment year 2006 07. 8. In this case the respondent / dealer's business place was audited by the enforcement wing officials during the period from 01.01.2007 to 31.03.2007 on 28.08.2010. During the course of audit it was found that the dealers have effected interstate sales without 'C' form and the Input Tax Credit on corresponding purchases were reversed in monthly returns for ₹ 15,644/- instead of ₹ 80,949/-. At the time of audit it was noticed by the enforcement wing officers, the respondent/dealer had admitted and paid the difference of Input Tax Credit of ₹ 65,305/- on 28.08.2010. In this case the Assessing Officer has issued notice to the dealer, the dealers have received the notice and filed their reply vide their letter dated 18.01.2012 and replied that in respect of reversal of Input Tax Credit of ₹ 65,305/-, it has been accepted by the dealer and paid by them on 28.08.2010 at the time of VAT audit. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (7) of the Act, Mr.V.Sundareswaran, learned counsel for the petitioner submitted that when returns were submitted by the dealer, for the above said assessment years, the same were accepted by the Department, under Section 22 (2) of TANVAT Act, 2016 and thus, there was a deemed assessment. Learned counsel for the petitioner further submitted that after the audit conducted under Section 64 (4), of TN VAT Act, 2002, certain defects were noticed by the Department and revision notice was issued. 10. He further submitted that M/s. Ergomaxx (India) Private Limited, the dealer has submitted a detailed reply, and also remitted the tax. Thus, when re-assessment was done, there was no tax payable. According to him, in the cases on hand, there was no determination of tax due under sub-Section 2 of Section 27 and therefore, no penalty can be imposed under sub-Section 27 (4) of the Tamil Nadu VAT Act, 2006. For the above reasons, he prayed for reversal of the orders impugned. 11. Opposing the same, Mr.V.Haribabu, learned Additional Government Pleader (Taxes) submitted that but for the inspection, suppression of tax, and reversal of input credit, would not have come to light and that theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lection of dealers for audit shall be made from amongst the dealers.-- (a) who have not filed returns within the prescribed period; or (b) who have claimed exorbitant amount of refund of tax; or (c) who have filed returns, but in the opinion of the Commissioner he is not satisfied with the correctness of any return filed, any ciaim made, deduction claimed or turnover disclosed in any such return; or (d) on the basis of any other criteria or on a random selection basis by the Commissioner; or (e) where detailed scrutiny of the case is necessary in the opinion of the Commissioner. (5) (a) During the course of the audit, the officer may require the dealer,- (i) to afford him the necessary facility to inspect such books of accounts or other documents as he may require and which may be available at such place; (ii) to afford him the necessary facility to check or verify the stock which may be found therein; and (iii) to furnish such information as he may require as to any matter which may be useful for or relevant to any proceedings under this Act. (b) The officer conducting the audit shall on no account remove or cause to be remove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in such manner as may be prescribed for the purpose of detailed scrutiny regarding the correctness of the returns submitted by the dealer and in such cases, revision of assessment shall be made, wherever necessary. (3-A) Notwithstanding anything contained in sub-section (2), the casual traders and the dealers in respect of whom the relevant assessment year is the first or the last year of business, shall be assessed on the basis of the scrutiny of the returns with reference to the books of accounts, registers, records and any other document and on such enquiry as the assessing authority may consider necessary .] 1 [(4) If no return is submitted by the dealer for any period of the year or if the return filed is in complete or incorrect, or if not accompanied with any of the documents prescribed or proof of payments of tax, the assessing authority shall, after making such enquiries as it may consider necessary, assess the dealer to the best of its judgment, subject to such conditions as may be prescribed, after the completion of that year: Provided that before taking action under this sub-section, the dealer shall be given a reasonable opportunity of being heard. (5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable opportunity of showing cause against such imposition. (6) (a) Any dealer assessed under sub-section (4) may, within a period of thirty days from the date of service of the assessment order, apply to the assessing authority for re-assessment, along with the correct and complete return as prescribed. On such application, the assessing authority shall, if it is satisfied that the failure to submit the return in time was due to reasons beyond the control of the applicant, cancel the assessment made and make a fresh assessment on the basis of the return submitted: Provided that no application shall be entertained under this sub-section unless it is accompanied by satisfactory proof of the payment of tax admitted by the applicant to be due or any such instalment thereof as might have become payable, as the case may be. (b) If the amount of tax on the basis of the cancelled assessment has already been collected and if the amount of tax arrived at as a result of the fresh assessment is different from it, any amount over paid by the dealer shall be refunded to him without interest, or the further amount of tax, if any, due from him shall be collected in accordance with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fference of ITC ₹ 63,305/- detected by the Enforcement Wing Officers on 28.10.2010 before passing the self Assessment Order on 25.05.2011. Assessing Officer has admitted this fact in the order but has not taken credit of the payments and proposed Levy of Penalty under Section 27(3) and 27(4) of the Act on 16.12.11. Subsequently Penalty under Section 27(3) for the Penalty and under Section 27(4) for ₹ 32,653/- was confirmed Penalty being 50% of Tax Assessed. In this regard Appellant has argued that the Learned Assessing Officer has not detected any suppression but Appellant has voluntarily admitted the ITC reversed and paid tax before passing of Assessment Order. There is no intention to suppress payment of tax. Hence there is difference only in the method of calculation of ITC. Contentions of the Appellant was examined with connected records and found acceptable. In view of the above, Penalty Levied under Section 27(4) ₹ 32,653/- is set aside. In fine, the Appeal stands Allowed. 19. When the correctness of the orders made by the Appellate Deputy Commissioner (CT) - 3, Chennai, were challenged, in S.T.A.Nos.250 to 252 of 2014, upon hearing the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by cheque, dted January 7, 1998 before completion of assessment, whether levy of penalty under Section 12 (3) of the Act is in order. 5. Mr.V.Sundareswaran, learned counsel for the petitioner, contended that the petitioner had made payment by way of cheque No.697629 dated January 7, 1998, even prior to the passing of the order and while so, in view of the decision in Chennai Textile Chemicals Private Ltd., Vs, State of Tamil Nadu, reported in {(2002) 125 STC 107 (Mad)}, the levy of penalty was not warranted. It was further submitted that even though payment of entire amount was brought to the notice of the AAC (CT) and also the Tribunal, the authorities have not kept in view the payment made by cheque dated January 7, 1998. 6. We have heard Mr.Haja Nazirudeen, Special Government Pleader (Taxes). Drawing our attention to the order of the AAC (CT), learned Special Government Pleader submitted that if the presentation of cheque No.697629 on January 7, 1998 is true, then the petitioner could have pointed out the same before the assessing officer. It was further submitted that as seen from the assessment order and the order of the AAC (CT), the petitioner has not produced any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een brought to the notice of the assessing Officer. Further contention has been made that there was no material to substantiate the cheque was presented prior to the passing of the order. After considering the amount, date mentioned in the cheque, Bank's statement of the petitioner therein, indicating that even before the assessment order, amount has already been encashed by the Assessing Officer, before conclusion, on the notice, and placing reliance on the decision of the Hon'ble Division Bench of this Court in Chennai Textile Chemicals Private Ltd., Vs. State of Tamil Nadu and Another, reported in {2002 (125) STC 107}, and Lingam Son's case, reported in {(2010) 29 VST 20 (DB-Mad), Tribunal has held that levy of penalty under Section 12 (3) of the then Tamil Nadu General Sales Tax Act, as not justified. 24. On consideration of the material on record, it could be seen that tax has been paid, even before the reassessment, under Section 27 (2) of the TANVAT Act, 2002. Though the Assistant Commissioner (CT), assessing Officer, has imposed the penalty, under Section 27 (4) of the TANVAT Act, the same has been reversed on appeal, by the Appellate Deputy Commissioner (C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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